Illegal Ballots? Hooey

Read the statute

Advocates of overturning the
results of the presidential election are claiming that the butterfly
ballots used in Palm Beach County were "illegal" ballots that violate
Florida law. A quick look at the law shows that the claim is ludicrous.

At
issue is Florida Revised Statutes section 101.191, which specifies "Form
of general election Ballot." The relevant part of the statute requires
that ballots contain the following instruction: "TO VOTE for a candidate
whose name is printed on the ballot, mark a cross (X) in the blank space
at the RIGHT of the name of the candidate for whom you desire to vote."
Read literally, this language would outlaw butterfly ballots, and every
other form of punch-card ballot, since the voter punches a hole in order
to vote, but does not "mark a cross." Likewise, voting machines would also
be illegal, since the voter pulls a lever, and does not "mark a cross."

Florida legislators, however, are not so silly as to pass a law banning
punch cards or voting machines. Nor are Palm Beach County election
officials so grossly incompetent that they would invent a new method of
voting which is prohibited by Florida law. You see, the very first
sentence of section 101.191 is: "The general election ballot shall be in
substantially the following form:" (emphasis added).

How
likely is it that a Florida court will overturn an election on the theory
that an instruction to punch out the hole next to the candidate's arrow is
not "substantially" the same as "mark a cross (X) in the blank space"?

If
the place to vote with an (X) or a hole-punch is to the left of a
candidate's name, rather than at the right, is the ballot form illegal?
Even though the relevant statute only asks for "substantial" rather than
literal adherence to the sample form?

The
judicial branch of government has a strong institutional interest in not
turning itself into forum for election losers to try to change the
results--especially on the basis of claims that could have been raised
before the ballots were distributed, and especially when the claims are
founded on a hyperliteral reading of a statute whose first sentence is an
instruction against hyperliteral reading.

The
Gore lawsuits are not really about winning a case in trial court that will
be sustained on appeal. Rather, the obvious purpose of bringing cases on
such flimsy legal grounds is to create a constitutional crisis, and
thereby cause Bush electors to vote for Gore.

Also by Kopel:

The
Recount Culture. The controversy about
Florida isn't just about politics. National Review Online.Dec.
2, 2000. With David Stolinsky.

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